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The law has been harshly criticized by lawyers and legal scholars, characterized as “flagrantly unconstitutional” by Supreme Court Justice Sotomayor and “an unprecedented assault on a woman’s constitutional rights” by President Biden. The legal concern over the constitutionality of SB 8 is two-fold.
First, there is a glaring contradiction between SB 8 and the protections for abortions provided by Roe v. Wade and Planned Parenthood v. Casey. These landmark cases guaranteed the right to abortion fully during the first trimester of pregnancy and ensured that second trimester state regulations did not impose undue burdens on those seeking the procedure. Texas’ bill completely bans abortion just halfway through the first trimester, blatantly violating Roe and not even leaving room for the analysis of undue burden under Casey. How, then, was this law passed in the first place and not struck down by the Supreme Court?
The technicality which the Supreme Court cites to justify allowing this law to survive is the second constitutional concern: private enforcement. Rather than have the state enforce the six week ban—which would have been quickly struck down, if even passed to begin with—SB 8 empowers private individuals to sue anyone involved in a post-six weeks abortion except the abortion-seeker. This not only includes people who perform the procedure or provide transportation, financial support, or housing to help someone get the abortion, but even those who merely intend to do so as per Sec.171.208 of the act. Even more broad is the pool of people who are allowed to bring suit—anyone besides a government official can sue, even those who are not residents of the state. Outside of ideological motivation, private citizens are financially incentivized to report the aiding and abetting of abortions: successful lawsuits can reward the plaintiff with $10,000 or more as well as reimbursement of attorney’s fees.
The “novel antecedent procedural questions” referred to in the Jackson majority stem from this enforcement scheme. New issues of standing arise: If the state isn’t the enforcing actor, can it be a defendant in subsequent litigation? Will people seeking abortions have standing in these future lawsuits if they cannot be sued under the law? How do private citizens have standing in enforcement lawsuits if they have not personally suffered injury from someone else getting an abortion? Rather than directly ruling on these questions and blocking the law until doing so, the Supreme Court used this ambiguity as the basis of their refusal to provide any injunctive relief. While the opinion claims it “in no way limits other procedurally proper challenges to the Texas law,” such complaints remained stagnant after filing in the months immediately following the passage of the bill. Suits are now being brought from both sides: the Department of Justice and ACLU, among other groups, have filed complaints against Texas. A doctor has been the first private citizen to be sued under SB8.
Lawyers, judges, and professors spoke up about the dangers of private enforcement in an open letter in April, before the bill passed in the Texas legislature. Besides pointing out the absurdity of the plan, they warned against “broad and unprecedented abuse of civil litigation to advance a political agenda”—civil legal infrastructure, regulation mechanisms, and state healthcare policies nationwide risk dramatic shifts if other states follow Texas’ strategy.
Apart from the legal implications of the bill, SB 8 also has poses serious risks to reproductive health, the use of science in politics, and the well-being of survivors of sexual abuse and assault. Research, both internationally and nationally focused, shows that there is no statistically significant correlation between the recently observed decline in abortion rates with legal restrictions. In fact, some states saw drops in abortion rates after increasing access to clinics—suggesting that the contraception and education reproductive health organizations prevent unwanted pregnancy to begin with. Barring access to facilities that safely perform abortion may encourage people to turn to dangerous and often ineffective attempts at abortion at home, potentially causing more harm to a woman and fetus than a standard procedure. Economic inequities are also exacerbated by restrictions on abortion, especially one like SB 8 which impacts all of Texas. With Medicaid not applicable for abortions and the added costs of travel and time off needed to go to a different state, low-income people disproportionately lose this access to reproductive healthcare. With other Republican states—many bordering each other—looking into recreating this law, the hurdles of time, distance, and clinic availability may be even more difficult to overcome.
Health experts are also scrutinizing the so-called heartbeat bill for its medically inaccurate reliance on heartbeat detection as a sign of fetal life. At six weeks, the ultrasound reveals electrical impulses, not blood pumping; fetal embryos have not yet formed the cardiac valves necessary to produce what most people consider to be heartbeats at this point in development. The American College of Obstetricians and Gynecologists has stated that referring to fetal heartbeat in these types of abortion bans is medically misleading. In fact, it isn’t until the eleventh week that medical practitioners mark the change from an embryo to a fetus. But since “legislatures are free to define things any way they want and give it the force of law… the reality of medical science is not a constraint,” leading to political battles over the use of the term “heartbeat” in activism appealing to gut emotions and morality.
The emotional impact of SB 8 extends beyond terminology. Because the law does not make exceptions for cases of rape or incest, mental health specialists are also pointing out the trauma that survivors of sexual assault are prone to face if forced to carry out an unwanted pregnancy. The impact of wealth disparity on the effects of the bill are once again highlighted, as not having access to abortion could prolong contact between women and their children with violent partners and has been linked to higher risk for pregnancy complications and postpartum mental strain.
All of these health-related concerns directly violate fundamental women’s rights. Besides pragmatically gutting the constitutional right to choose to terminate a pregnancy after six weeks, this law also undermines respect for women’s autonomy and privacy. Abortion, at any point of pregnancy, is a medical procedure—when involvement in this procedure is grounds for civil suits, the government is actively encouraging strangers to publicize and profit off of what is inherently a protected, private matter between a woman and her doctor. Taking into account that the law does not provide exception for rape and incest, SB 8 is also stripping privacy, protection, and mental health concerns from the victims of such serious crimes. This is unacceptable as it is, and inconceivable in any other aspect of healthcare. But even worse is the danger this can invoke toward women: Given how controversial abortion can be in many religious, cultural, and family contexts, the law is stripping away an indiviual’s autonomy to make these sorts of decisions without risking backlash or violence from those around them who are personally opposed to the procedure. The novelty of the enforcement of SB8 means we are still unsure of how such situations will play out and do not have safety measures in place to readily protect those that may deal with this. By not blocking SB 8 from taking effect, the Supreme Court has essentially put its seal of approval on this explicit, unapologetic, and highly consequential disregard for women’s rights.
The Supreme Court’s failure to hold states accountable for violating individual constitutional rights and ignoring precedent is unsettling, and raises concerns about the future of reproductive rights under the Roberts Court. Perhaps even more alarming is the method by which it did so. The Court is scheduled to address abortion in 2022 after it agreed to hear a case about a Mississippi law banning most abortions after fifteen weeks. This upcoming case understandably has led to much concern as to how the future holding would impact Roe. But Jackson—which has already impacted the protections of Roe—was not even a decision people knew to anticipate.
The Supreme Court instead used its “shadow docket”: a mechanism intended for “emergency applications and procedural questions with limited briefing, no oral arguments and, often, no public explanation.” Jackson is a one-page, vaguely articulated justification for refusing to rule on or temporarily block an abortion ban which openly violates Roe and Casey and uses unprecedented methods of civil litigation to punish those who aid and abet abortion, or even merely intend to do so. The Court’s use of the shadow docket in politically and constitutionally inflammatory cases is unfortunately not an uncommon pattern. It has been used to quickly rule on issues of federal executions, the COVID-19 eviction ban, and asylum policy from the Trump administration. These are legal issues that affect millions, are deeply societally controversial, and are literally life-and-death matters.
The Supreme Court has a responsibility to take accountability for its decisions through reasoned opinions, not departing from established precedent, and setting clear new precedent when required. With SB 8, the Court is facilitating the infringement of millions of people’s constitutional and human rights and the creation of a messy civil enforcement scheme—without bothering to check states’ or its own powers. In response, the Senate Judiciary Committee will be holding a hearing about the Supreme Court’s abuse of the shadow docket, generally and in the context of the recent Texas law. This worry is also internal: Jackson featured harsh criticisms from the four dissenting Justices. As Justice Kagan argued, the Court’s use of shadow docket is increasingly “un-reasoned, inconsistent, and impossible to defend.” Though the Supreme Court remains difficult to check, SB 8 highlights just how crucial it is to find means to demand accountability from an institution upon which fundamental rights rest.
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